Wui-Wapi v Kembu [1980] PGLawRp 583; [1980] PNGLR 7 (7 March 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 7 - Wui-Wapi v Ludwick Kembu 

[1980] PNGLR 7

N226

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WUI-WAPI AND SEVENTEEN OTHERS

V.

LUDWICK KEMBU

Minj, Kundiawa & Waigani

Pratt J

21 February 1980

25 February 1980

7 March 1980

POLICE OFFENCES - Taking part in unlawful assembly - What constitutes offence - Meaning of “presence” - Proof of mere presence not sufficient to constitute offence - Participation required - Inter-Group Fighting Act 1977, s. 10.

WORDS AND PHRASES - “Presence” - “Take part” - “Gathering” - Taking part in unlawful assembly - Inter-Group Fighting Act 1977, s. 10.

Section 10 of the Inter-Group Fighting Act 1977 provides:

N1>“10.    Preparing to Fight.

N2>(1)      For the purposes of this Act, a gathering of one or more persons, any one of whom is armed with an offensive weapon, which—

(a)      is taking part; or

(b)      appears to be about to take part; or

(c)      appears to be preparing to take part,

in a fight with any other group of persons or a member of that other group of persons, is an unlawful assembly.

N2>(2)      A person who takes part in an unlawful assembly referred to in subsection (1) is guilty of an offence.”

On appeals against conviction and sentence under the section;

Held:

N1>(1)      To succeed on a prosecution under s. 10(2) of the Inter-Group Fighting Act 1977, the State must prove beyond reasonable doubt some active participation by the defendant which associates him with the assembly.

N1>(2)      In order to establish an “unlawful assembly” within the meaning of s. 10 of the Inter-Group Fighting Act 1977, regard must be had to the object of the gathering, that is, what common interest joins those gathered together and makes it in fact a gathering, and whether those who are physically present may be said to be members of that gathering.

Reg. v. Cunninghame Graham and Burns (1888) 16 Cox C.C. 420; and

Reg. v. Atkinson and Others (1869) 11 Cox C.C. 330 at p. 332 referred to.

N1>(3)      In order to prove a “taking part” in an unlawful assembly under s. 10 of the Inter-Group Fighting Act 1977, the State must prove some activity which amounts to aiding, abetting, counselling etc., others at the assembly to participate in such assembly.

N1>(4)      Mere presence at such an assembly is not of itself sufficient to warrant conviction under s. 10(2) of the Inter-Group Fighting Act 1977.

Porewa Wani v. The State [1979] P.N.G.L.R. 593, and

Agiru Aieni and Twelve Others v. Paul T. Tahain [1978] P.N.G.L.R. 37 at pp. 43 and 44 referred to.

Appeal.

This was an appeal by eighteen women against convictions and sentences by the District Court on charges of taking part in an unlawful assembly contrary to s. 10 of the Inter-Group Fighting Act 1977.

Counsel:

K. A. Wilson, for the appellants.

C. J Bourke, for the respondent.

Cur. adv. vult.

7 March 1980

PRATT J: This is an appeal by eighteen women against their conviction and sentence by the District Court magistrate at Minj on 5th January last, following an information laid jointly against all defendants that they, on 4th January 1980, “did take part in an unlawful assembly as defined under section 10(1)(c) of the Inter-Group Fighting Act and appeared to be preparing to take part in a fight with another group of persons, to wit, the Ngenege Clan, thereby contravening section 10(2) of the Inter-Group Fighting Act 1977.”

The court papers disclose that the charge was read and explained fully to each and severally on their pleas and it appears that after the above complaint was put, each defendant said “true”. Pleas of guilty were entered “(prov.)”, which I take to mean “provisionally”, and the statement of facts was then read out. That statement reads as follows:

“On the fourth day of January 1980, at about 3.00 p.m., gathering of over six hundred peoples from Kombuga, Kukuga and other nearby clans took place at the top of a hill about three kilometres from Minj township to mourn the death of a Kombuga clansman died during the tribal fighting at Minj on the third day of January 1980, between the Ngenege and the combined Kombuga/Kukuga Clans.

During the gathering, large number of the people were seen by police to be armed with spears, bows and arrows and shields. The defendants now before the Court were in the gathering and some of them were armed. At one stage of the gathering, the warriors heavily armed with spears, bows, arrows and shields and charged down the ridge facing the opposing clans, the Ngenege, who were also mourning their death, shouting and war-dancing, the manner which the police believed to provoke their enemies. Upon seeing the police on the road, they retreated back to the gathering place. The police then moved in and apprehended the defendants who were trying to escape back to their area. They were told of their charges and later charged and placed in the cell.” [sic]

The hearing of this appeal was done jointly with the hearing of two further appeals involving separate male defendants. The statement of facts in those appeals was exactly the same as the one which I have quoted above in respect of the charges against the women. I do not think anyone was under the impression that an allegation was being made that the women were acting in the role of warriors, but I think that some of the error which has crept into the cases against these women may be sheeted home to the fact that whilst the use of stereotyped statements of fact on many occasions be time saving and reasonably accurate, they must nevertheless always be treated with great care and should certainly serve to put the magistrate on guard against the dangers of mass production. The strains and pressures on the magistrate, his court staff and the police prosecution section are no doubt very great indeed during these ever increasing incidents of clan and tribal fighting and many long hours are worked, but the old proverb of “more haste, less speed” is one which should clearly be kept in mind.

The Court papers also disclose that four questions were put to each accused in order to ascertain that the statement of facts had been heard, understood, was correct, and whether or not the defendant wished to say anything. The reply to the last question of each of the eighteen defendants was basically the same. I quote Wui-Wapi as an example:

“That is true. We gathered after they killed my husband’s uncle and riot squad came and arrested us.” [sic]

Section 10 of the Inter-Group Fighting Act 1977 reads as follows:

N2>“10.    Preparing to Fight.

(1)      For the purposes of this Act, a gathering of one or more persons, any one of whom is armed with an offensive weapon, which—

(a)      is taking part; or

(b)      appears to be about to take part; or

(c)      appears to be preparing to take part,

in a fight with any other group of persons or a member of that other group of persons, is an unlawful assembly.

(2)      A person who takes part in an unlawful assembly referred to in sub-section (1) is guilty of an offence.”

Then follows the penalty provision.

The appeal was argued on two grounds:

N1>1.       That the magistrate did not put with sufficient clarity all the elements of the offence but especially that part which alleges that each defendant “took part” in the gathering.

N1>2.       That there was no material on the statement of facts to support any finding that all or any of the women had indeed taken part; and that the magistrate should have made fuller inquiry before he confirmed the entry of a provisional plea. It was urged that the intention of the women, which could be called from the nature of their reply to the reading of the statement of facts and indeed from the statement of facts itself, was to gather for the purpose of mourning “the death of a Kombuga clansman”. This is a task which throughout the length and breadth of Papua New Guinea pre-eminently requires the vocal skills of the womenfolk.

I agree that the offence certainly does contain a number of elements, and if all that was put to the defendants was the wording of the charge as set out in the information, especially after it was translated into the mid-Waghi language, then I doubt very much if any appreciation of the various elements was experienced by any defendant. However, the transcript of proceedings does state that the charge was “fully explained”, a phrase which is somewhat descriptive but totally uninformative. Fortunately in this case, the Court has received with commendable promptness a copy of the magistrate’s “Reasons for Judgment”, which clarify a number of issues and underline the fact that although the charge may have been explained fully, it was not explained correctly. Indeed, I have reason to believe that the particular interpretation placed by the present magistrate on s. 10, may be one held fairly widely in the Highlands.

It would be useful to set out the following extract from those reasons:

“In section 10(1) of the Inter-Group Fighting Act of 1977, the appellants do not have to be armed. Only one person amongst them should be armed to make them all guilty of this offence of unlawful assembly, in a declared fighting area. This section does not require that all of them should be armed before this offence is committed. The fact that they were in this unlawful assembly was not disputed by any one of them and they were in this unlawful assembly and in this gathering as stated in the facts read to them, there were armed warriors present with them and attacking the opposing clan who had also gathered unlawfully mourning over their dead. The fact that they were in this unlawful gathering together with some armed warriors who had then rushed to attack the opposing clan, makes them all guilty of this offence, even though they were not armed and this satisfies the provisions of section 10(1) of the Inter-Group Fighting Act of 1977.” (Emphasis mine.)

It may be thought to be a mere statement of the obvious that sub-s. (1) of this section sets out to define what is an unlawful gathering, whilst sub-s. (2) makes it an offence to “take part” in such gathering. It seems to me that error may have arisen as a result of a failure to appreciate this very point. Merely because you happen to be physically present on an area of ground where such a gathering is in progress, need not necessarily mean that you are thereby taking part in such gathering. Obviously the police who are in the area are present, but by no stretch of the imagination could it be said they are taking part. Likewise, as pointed out by the respondent’s counsel in an attempt to deal with innocent association whilst at the same time almost arguing that physical presence was all that was required, a newspaper reporter would hardly be likely to be one who is doing anything else than merely making observations. But those examples point to the first area which requires some careful consideration, namely what is the import of the word “gathering”. It is a fairly common English word which contains within it certain assumptions which are accepted unconsciously by the speaker and the hearer alike, but are never really analyzed.

A “gathering” is defined in the Shorter Oxford Dictionary as “an assembly or meeting; the action of coming together”. It is a coming together of people with a common interest, although not necessarily a mutual sympathy. Some may be at the gathering merely to observe, whilst others are there to criticize openly. The object of the meeting however, is what joins them together and makes it in fact a gathering. It is obviously also possible that two gatherings can exist, one inside the other, one at least of which may fall within the meaning of s. 10. If, for example, five armed men called in at a church service on the way to fight, that would not make the rest of the worshippers, persons gathered in an unlawful assembly. Despite the delay in the execution of their intent, it may well be that the five armed men still in themselves, constitute an unlawful assembly, but in my view, the purpose of the gathering and the motives of those gathered would prevent the worshippers from being tarred with the same brush. It seems to me therefore that one must take some notice of the object of a gathering in order to establish whether it indeed is an unlawful gathering within the meaning of s. 10, and whether those who are physically present may be said to be members of that gathering.

The major difficulty however, which is faced by the respondent lies in the interpretation of the phrase “takes part” appearing in sub-s. (2) of s. 10. Miss Bourke was in fact forced to argue that the term “takes part” was equivalent to the term “is at”, or applicable to any person “who is there”, unless he is doing something which clearly disassociates him from the group. It was further submitted that in order to overcome the problem of the innocent bystander, the phrase “takes part” was used as a more active phrase than the term “is at”. It seems to me that even the respondent had to recognize some degree of association between the individual and the purpose of the gathering.

However, Miss Bourke sought support for the submission by examining ss. 12 and 13. These sections cover in effect counselling and procuring and aiding and abetting. It was said that, therefore, “takes part” in s. 10 must be something less than aiding or assisting or encouraging or procuring a person to participate in the unlawful assembly. An examination of these two sections however, reveals that they do not deal with the situation where an actual unlawful assembly is constituted. Section 12 deals with planning or organizing (or assisting therein) such an assembly and is obviously directed to a point in time before such assembly actually materializes. Section 13 deals not with unlawful assembly or aiding or inciting one at such an assembly to join the group, but with aiding or encouraging persons to commit a breach of s. 11, not s. 10. It will certainly often be the case that such activities will be engaged in during such unlawful assembly but with the object to encourage the listener to take part in an inter-group fight and nothing else.

In its normal usage, the phrase “take part” would certainly connote some degree of active participation in the assembly. Again turning to the Shorter Oxford Dictionary, we find the phrase “(to take) part” is defined as “to share, partake of or in, to participate in (some action), to assist, to co-operate”. In my opinion, to succeed on a prosecution under s. 10(2) of the Inter-Group Fighting Act 1977, the State must prove beyond reasonable doubt some active participation by the defendant which associates him with the assembly. Probably the mere carrying of a spear, shield or bow and arrow or the uttering of threatening words would be prima facie sufficient. Each case of course would depend on its own facts. It should not be forgotten that in attempting to establish such participation, the prosecutor would be entitled to rely on all the areas covered by s. 7 of the Criminal Code, for by s. 2 of the Criminal Code, an offence is “an act or omission which renders the person doing the act or making the omission liable to punishment”. Section 7 is just as applicable to the offences contained in the Inter-Group Fighting Act 1977, except where it is excluded specifically or by clear implication in the Act itself, as it is to any of the offences under the Code itself. It seems to me that the existence of this section side by side with s. 10 of the Inter-Group Fighting Act 1977, strengthens the view that in order to prove a “taking part” in an unlawful assembly, the prosecutiton must prove some activity which amounts to aiding, abetting, counselling and so forth, others at the assembly to participate in such assembly. It may be that in some circumstances even feeding those gathered, for the purpose of sustaining them during the assembly is sufficient to warrant a conviction. Mere presence at such a gathering is not of itself sufficient to warrant conviction under s. 10(2).

Although it is sometimes dangerous to rely on common law authorities when one is endeavouring to place an interpretation on a specific piece of legislation, I nevertheless consider that some benefit can be obtained from two English authorities which deal with unlawful assemblies. The first of these is R. v. Cunninghame Graham and Burns[xv]¹. This case dealt with a riot in Trafalgar Square in 1887, which had resulted from a resolution by the Metropolitan Radical Federation that “a demonstration be held ... to demand the release of Mr. William O’Brien M.P. and other Irish patriots”. During his final charge to the jury, Charles J says[xvi]²:

“Now, with regard to an unlawful assembly, what is an unlawful assembly? That has been laid down by the very highest authority in these terms:

‘An unlawful assembly is an assembly of persons with the intention of carrying out any common purpose’.”

Further on[xvii]³:

“But let me remind you that what you have to consider is this—not whether the assembly had been unlawful the whole morning or whole afternoon, but whether the assembly that was gathered together in Trafalgar Square at the mouth of the Strand, when Graham and Burns became participators in it, was an unlawful assembly. Plenty of people may find themselves in an unlawful assembly who are guilty of no crime at all; you may find yourself there by the merest accident; you may very much want to get away but find yourself unable to do so. It would be idle to say, in either of those two cases, you could be indicted for an unlawful assembly ... It may very well be that an assembly which is perfectly innocent at one time may become riotous and unlawful at another, and although you may have gathered together with a most innocent intention, still, if while you are so gathered you determine to do an act of violence, then you become a member of an unlawful assembly.”

The second case is Reg. v. Atkinson and Others[xviii]⁴. In answer to a submission of “no case”, Kelly C.B. made the observation that there was ample evidence “that a large number of persons had paraded the streets for a common purpose—that of attacking the houses of persons of a particular political party”. Once again, the emphasis is clearly on gathering for a common purpose. In the instant case, if part of the gathering is there for the purpose of mourning and the other part of the gathering is there for the purpose of inflaming passions, it may well be and probably is the case that there are two distinct gatherings. Returning to Atkinson’s case, however, a little lower down on p. 333, the learned Chief Baron says the following[xix]⁵:

“There could be no difficulty in determining that a riot really was committed ... The question was whether these five defendants were parties to the riot. He had already ruled as regards the principal defendant that the mere presence of a person among the rioters, even though he possessed the power and failed to exercise it stopping the riot, did not render him liable on such a charge; and the question was whether, as regarded these five defendants, there was sufficient evidence that they were assembled for an unlawful purpose.”

Kelly C.B. goes on to say that if there was any assistance or encouragement of others to surround and obstruct the duly authorized officers, then that would make them guilty of an offence and concludes:

“... but in order to find any of the defendants guilty, the jury must be satisfied that they had taken part in an assembly for an unlawful purpose, and had helped or encouraged or incited the others in the prosecution of that purpose.”

I have also obtained some assistance from two authorities decided in Papua New Guinea. In the Supreme Court appeal, Porewa Wani v. The State[xx]⁶, although argument was directed more to the problem of aiding and abetting, reference was made by the Court to mere presence. The Court says[xxi]⁷:

“It is well established that mere presence at the scene of a crime is not enough to constitute aiding. However, presence and wilful encouragement are enough.”

The Court then cites a number of authorities in support.

In the appeal case, Agiru Aieni and Twelve Others v. Paul T. Tahain[xxii]⁸, Wilson J dealt with a number of aspects under s. 8 of the Summary Offences Act 1977 which made it an offence for a person to behave “in a manner that was likely to cause a reasonable person to believe that he intended to start a fight”. Although the wording is different from the section which I have to consider, his Honour did nevertheless deal with the question of mere presence, and says[xxiii]⁹:

“In this case, however, the magistrate reports that the ‘defendants almost without exception did not deny their presence in area’ which suggests to me that he took the view (and had so explained to the appellants) that their mere presence at a gathering which was likely to lead to fighting was sufficient to constitute the offence. Such is not the law.”

His Honour goes on to say[xxiv]¹⁰:

“The magistrate was not entitled to accept that any admission amounted to more than an acknowledgement of being present in the area. The magistrate was not entitled to accept that any admission had been made that the behaviour of any of the appellants was likely to cause a reasonable person to believe that any particular appellant was likely to start a fight (or, in the case of derivative responsibility, was promoting or encouraging another’s like behaviour).”

I find his Honour’s words particularly apposite to the problem which has faced me in this appeal despite the difference in wording of the two sections.

In the instant case, the learned magistrate makes some pertinent observations on the aspect of aid in his reasons on sentence. He says, inter alia, “Women, like the appellants, gather with warriors to steal from food gardens of the opposing clan and destroy food gardens ... (they) gather to bring food to the fighting warriors so that they may continue to fight to pay back for their own dead by killing one of the opposing clan ... (they) gather to mourn in traditional and customary way in such a manner and in such ways, according to the custom of the Highlands people, which encourages the men to even be fierce in fighting with the opposing clan”. If in fact this was the case with these eighteen women, then it should have been so stated. There is no allegation, no charge to this effect to which the women could make a reply. There is nothing of such a nature even suggested in the statement of facts and was certainly never put to the defendants.

I cannot see how the facts as alleged involve the women at all, even by inference. Speculation is not the task of a court of law. The defendants are before the court on a criminal charge, one which carries a maximum of two years’ imprisonment. What is stipulated in the statement of facts is an allegation which in the circumstances is obviously quite ludicrous and clearly casts doubt on the accuracy of the entire statement. I refer of course to that part of the statement which claims that in fact some of the defendants were armed. I cannot see that any offence has been committed by the appellants on a proper appraisal of the statement of facts.

In the present appeal, it was further submitted on behalf of the appellants that the magistrate had improperly entered a plea of guilty and that a further investigation of the issues would have indicated that a plea of “not guilty” should have been entered. In view of what I perceive to be the magistrate’s false conception of the law, however, that mere presence at an unlawful assembly was sufficient to constitute taking part in such an assembly, it is not surprising that the magistrate did not alter the pleas. Nevertheless, as has been pointed out on a number of occasions by the courts in Papua New Guinea, each element of the charge must be put to the accused and “if the defendant has any cause to show why he should not be convicted or why an order should not be made against him, the court is to proceed to hear and to determine the case under s. 135 of the District Courts Act 1963. The accused must admit the truth of the information before he can be convicted without the magistrate proceeding to hear and determine the case. The defendant must admit every element of the charge (see Towarli Tokoi v. Harold Bryant)[xxv]¹¹: and Jacob Hendrich Prai and Otto Ondawame v. an Officer of the Government of Papua New Guinea[xxvi]¹². Perhaps the leading authority in Papua New Guinea in this area of the law is contained in the judgment of Frost J (as he then was) in Laeka Ivarabou v. Nanau[xxvii]¹³. After reviewing a number of authorities, his Honour adopted in particular a statement of the law by Lord Widgery in Reg. v. Blandford Justice’s; Ex parte G. (An Infant)[xxviii]¹⁴ and goes on to say in relation to the circumstances of Papua New Guinea that:

“It is rare in the Territory for a defendant simply to plead ‘guilty’ or ‘not guilty’. The defendant usually admits or denies the elements of the charge. In this case when the defendant admitted that he struck the complainant, the learned magistrate was not in possession of sufficient facts to determine whether the defendant had unequivocally pleaded ‘guilty’ to the charge. He should then have heard the substance of the defendant’s version before entering a plea ... Thus the decision to convict as on a plea of guilty was a nullity.”

I would also respectfully adopt as a proper statement of the law a paragraph from an unnumbered judgment of Andrew J[xxix]¹⁵. His Honour at p. 4 of that judgment says:

“Great care must be exercised before entering a plea of guilty when persons are uneducated and unrepresented. There must be an unequivocal admission of guilt to every element of the charge.”

In closing this judgment, I wish to make some comment on the somewhat defensive nature of the helpful “Reasons for Judgment” furnished to this Court by the learned magistrate. For example, his Worship states that pleas of “guilty” were: “correctly entered and within the law. I could not see how a plea of not guilty should have been entered on their behalf as claimed in the first grounds of appeal”. That indeed may well be so, but of course the lodging of an appeal does nothing more than ask the National Court or in the case of an appeal from the National Court to the Supreme Court, then the latter body, to examine whether in fact such pleas were correct and within the law. A little later on, his Worship goes on to say that “the court rightly found the charge against them proven and rightly convicted them of the charge”. In the absence of extremely persuasive evidence to the contrary, the appeal court would always assume that what the lower court had done was indeed “rightly done” in accordance with the officiating judicial officer’s concept of the law. It is a natural human reaction to take up a defensive attitude when one thinks one is being placed under attack. What I wish to stress to all magistrates is that in cases where an appeal has been lodged, there is no attack being launched at all, and certainly not a personal attack. What is being done, is simply to raise a query for resolution by another court which forms part of an appeal system set up by this country’s laws and constitution. There should be no feeling of personal reflection on the magistrate, provided he has, as indeed is obvious to the present case, performed his functions assiduously and conscientiously. Once he has made up his mind, that is the end of the matter. What that magistrate has ruled is the law unless or until someone else higher in the judicial ranking states otherwise. There is no room for attitudes which equate the mere lodging of an appeal with a challenge to law and order. The basic reason for an appeal system is to overcome the very real problem that every member of the Judiciary, whether he be magistrate or National Court judge, is liable to fall into error and any challenge to that decision, is not a challenge to the integrity or ability of the particular judicial officer or to respect for law and order. Though the comment may be of some interest, words like the following:

“Women in the Highlands are actively taking parts in unlawful assemblies and fights. If (?) those who do not believe this, I suggest they come out in person and see tribal fights going on ...” [sic]

are of little real assistance to the appeal court. Such remarks are understandable and reflect a laudable concern for the difficulties which are being created in the administration of justice during the present tribal fighting in the Highlands. But the court must act both in accordance with law and with the facts which are presented against each individual defendant who comes before it. A failure to pursue such course would lead to a much greater break-down than any tribal fighting.

The decision of the Court is therefore that the appeal be upheld in each case, and the conviction quashed. There will be no order as to a re-hearing.

Appeal in each case upheld.

Solicitor for the appellant: D. J McDermott, Acting Public Solicitor.

Solicitor for the respondent: C. Maino-Aoae, Acting Public Prosecutor.

R>

[xv](1888) 16 Cox C.C. 420.

[xvi](1888) 16 Cox C.C. at p. 427.

[xvii](1888) 16 Cox C.C. at p. 433.

[xviii] (1869) 11 Cox C.C. 330 at p. 332.

[xix](1869) 11 Cox C.C. at p. 333.

[xx][1979] P.N.G.L.R. 593.

[xxi][1979] P.N.G.L.R. at p. 600.

[xxii][1978] P.N.G.L.R. 37.

[xxiii][1978] P.N.G.L.R. at p. 43.

[xxiv][1978] P.N.G.L.R. at p. 44.

[xxv]Unreported judgment No. 674 21st March, 1972.

[xxvi][1979] P.N.G.L.R. 1.

[xxvii][1967-68] P. & N.G.L.R. 12 at p. 17.

[xxviii][1966] 2 W.L.R. 1232.

[xxix]Appeals Nos. 13-34, 44-74 & 76-82 of 1979, delivered 28th May, 1979.